U.S. v. Aguirre-Tello, 02-2049.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation324 F.3d 1181
Docket NumberNo. 02-2049.,02-2049.
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Ricardo AGUIRRE-TELLO, Defendant-Appellee.
Decision Date07 April 2003
324 F.3d 1181
UNITED STATES of America, Plaintiff-Appellant,
Ricardo AGUIRRE-TELLO, Defendant-Appellee.
No. 02-2049.
United States Court of Appeals, Tenth Circuit.
April 7, 2003.

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Peter S. Levitt, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the brief), Las Cruces, New Mexico, for the Appellant.

Felipe D.J. Millan, El Paso, Texas, for the Appellee.

Before SEYMOUR, HOLLOWAY and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, dissenting.

HOLLOWAY, Circuit Judge.

The United States appeals from the order of the district court dismissing the indictment which had been returned against defendant/appellee Ricardo Aguirre, charging him with illegal re-entry into the United States after having been deported, in violation of 8 U.S.C. § 1326(a),(b)(2). The district judge dismissed the charge based on her conclusion that the underlying deportation proceedings had been fundamentally unfair. United States v. Aguirre-Tello, 181 F.Supp.2d 1298 (D.N.M.2002). We have jurisdiction under 18 U.S.C. § 3731 and 28 U.S.C. § 1291 to review the district court's dismissal of the indictment.


Defendant was born in Mexico in 1969. He testified in the hearing in the district court that he first came to the United States with his parents in 1973, and his counsel told the court that he had been in this country ever since. However, he was not in this country legally until August 1987, when he was granted an immigration visa. In November 1989, defendant was convicted in state court in California of attempted murder. He was sentenced to a term of nine years but was released after having served, it appears, just less than five years of that sentence.1 On his release from prison in 1994, the Immigration and Naturalization Service commenced deportation proceedings. A hearing was held before an Immigration Judge (IJ) on August 19, 1994, one day before defendant would have reached the legally significant milestone of seven years of legal residence in this country, as discussed below.

Because the issue in this appeal is whether the 1994 deportation hearing was fundamentally unfair, we will review the record of that proceeding in some detail.


The deportation hearing was held before an Immigration Judge (IJ) in El Centro, California, on August 19, 1994, for twenty potential deportees. Defendant Aguirre was one of three potential deportees who indicated that they spoke English and wanted their hearings conducted in English.

First, the IJ determined that all of the potential deportees understood that the purpose of the hearing was to determine if the charges were true and that each one

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would be asked to admit or deny the charges. In his explanation of the hearing the IJ said, "Even if the charges are proven [that] doesn't mean you must be deported; you might be eligible for some pardon or for asylum. If you are eligible for a pardon, I will tell you. Do you understand the purpose of this hearing?" The transcript shows that the defendants as a group answered "yes."2

The IJ then informed the potential deportees that they had a right to be represented by counsel:

At this hearing, you can have an attorney, but the government won't pay for your attorney. You each have a list of free legal services. If you haven't had time to consult with an attorney, I'll postpone your case. But you don't have to have an attorney; you have the right to represent yourself. Do you understand your right to be represented?


Aplt.App. at 7-8.

Later, the IJ further advised the potential deportees of their rights:

THE COURT: Do any of you want more time to get a lawyer? And if you do, raise your hand. There are no hands. So we'll continue with each of you representing yourself. If you represent yourself, you should know that you can listen to and ask questions of any witness the government calls and look at anything the government gives me to consider against you. You can object to the government's evidence by explaining to me why you disagree with it. You can call witnesses to testify for you and show me anything you believe is important to your case. You can testify and tell me your story in your own words. Do you understand these rights?


THE INTERPRETER: Yes, by all responses.

THE COURT: If you disagree with my decision, you can appeal. Your right to appeal is explained on the same paper that lists the legal services. By an appeal, you ask a higher court to review what I've done and determine if I've made a mistake. Do you understand your right to appeal?


THE INTERPRETER: By all respondents, yes.

Aplt.App. at 13-14.

Later in the hearing, the IJ addressed Mr. Aguirre individually. After determining that Aguirre did not have an attorney, the IJ asked if he wanted more time to get an attorney. Aguirre said no. Aguirre affirmed that he understood his rights and that he understood the charges. He also admitted that he was a citizen of Mexico, that he had entered the United States as an immigrant in August 1987, and that in November 1989 he had been convicted of attempted murder in Los Angeles County, California. Aguirre also said that he had been sentenced to nine years in prison and had served 63 months.3

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As the colloquy between the IJ and Mr. Aguirre continued, the defendant testified that he was born in Mexico, that neither of his parents were American citizens at the time, that he had received a "green card" but had never applied for citizenship, and that he had lived in the United States for the last seven years. At that point, the IJ quite apparently realized two things: that it had been seven years less one day since Aguirre had been permitted to enter this country legally, and that under the law then in effect, aliens who had been in this country legally for seven years were eligible for a "waiver" or discretionary relief from deportation. Thus, the IJ advised Aguirre:

THE COURT: Okay. You are not today eligible for a pardon, but you would be tomorrow. Do you want your case postponed to see if you might be granted a pardon and allowed to remain in this country?


THE COURT: All right. If I order you deported, then, to what country do you want to go?


THE COURT: Do you know, sir, that if you're deported, that you'll lose your status in this country and you could not return except with a visa and proper permission from the Attorney General?


THE COURT: And do you know that your crime would make you ineligible for a visa to come back to the US?


THE COURT: So that if you want to stay in the US, this is the time to, shall we say, fight it out and try to remain; do you understand that?


THE COURT: Now that you know all that, do you want to apply for a pardon?


THE COURT: Why not?

DEFENDANT AGUIRRE: I want to voluntarily return to my country.

THE COURT: Okay. Well, there's no voluntary return available in a case like this, but are you saying you just want to go back?


THE COURT: All right. Based on your statements to me, I find that you've knowingly, voluntarily and intelligently waived your opportunity for relief. And I order you deported to Mexico. You can appeal. Do you want to appeal?


THE COURT: Then my decision's final. Good luck, sir.

Aplt.App. at 24-26.


The indictment in the instant case alleges that Aguirre was found in Dona Ana County, New Mexico, on or about February 10, 2001, and that he had not received permission from the United States Attorney General to apply for admission into this country after his 1994 deportation. Aplt.App. 74. Defendant moved to dismiss the indictment, asserting that the 1994 deportation proceeding was fundamentally unfair and invalid on due process grounds. After a hearing on November 20, 2001, at which, inter alia, the tape of the 1994 deportation hearing was played and the defendant testified in person, the district judge determined that the 1994 deportation hearing had been inadequate to protect defendant's rights in several ways.

The focus of the district court's Memorandum Opinion and Order, Aplt.App. at 164 et seq, is on the conclusion that the

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deportation hearing had been unfair because the immigration judge had not adequately explained to defendant his unique circumstances and their import. Specifically, the law in effect at the time provided that an alien who had been lawfully in this country for seven years could apply for a waiver of deportation even though he had committed an aggravated felony, provided he had not served a prison term of five years. Such a waiver was then provided for in section 212(c) of the Immigration and Naturalization Act, which stated in pertinent part:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under any order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General.... The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.

8 U.S.C. § 1182(c) (1994).

As the district judge pointed out, although the statute refers to persons who temporarily leave the United States, it has been held that the section 212(c) waiver "is equally applicable to permanent residents who have never left." See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2276, 150 L.Ed.2d 347 (2001). Defendant was only one day short of having completed such seven years on the day of the deportation hearing. As the excerpts from the deportation hearing above...

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